ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00021394
Community Hall Operator
Karl M Carney & Co. Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994
Date of Adjudication Hearing: 17/09/2019
Workplace Relations Commission Adjudication Officer: Joe Donnelly
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015 and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaints/dispute to me by the Director General, I inquired into the complaints/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints/dispute.
The complainant was employed as an office administrator by the respondent. Her employment was on a part-time basis and commenced in July 2011. The complaints / dispute are in relation to events which led to the termination of the complainant’s employment on 31 December 2018.
Summary of Complainant’s Case:
The complainant was advised on 5 December 2018 that her employment would terminate at the end of the month due to a reduction in funding for the operation.
When contacted, the funding provider advised the complainant that funding had not been reduced by that organisation but that the respondent had applied for a reduction.
The complainant believes that this decision is linked to a formal complaint lodged by her in relation to the Company Secretary.
Members of the committee engaged in bullying behaviour towards the complainant.
The complainant’s terms and conditions of employment were changed without notice.
Summary of Respondent’s Case:
The running costs for the operation of the community hall were increasing to an unacceptable level.
Because of the need to reduce costs a decision was made to eliminate the administrative position.
The funding provider was requested to reduce funding accordingly.
The complaint of bullying by the complainant was not investigated as a decision had already been made in relation to her redundancy.
Findings and Conclusions:
The respondent is a community organisation which runs a small community hall for the use of residents of the locality. The operation is overseen by a voluntary committee. The respondent employed 3 people on a part-time basis. The funding for their wages comes from a government body which supports local community-based groups. The complainant commenced employment with the respondent in July 2011 and was employed as an office administrator working 29.5 hours per week.
In 2018 the committee decided to review the costs of running the hall. The income of the hall consisted of the grant received from the funding body, usage payments by a playgroup, bingo proceeds, other payments for the use of the hall and occasional donations. Outgoings included wages and associated costs, utility charges, insurance, audit / legal costs and maintenance. The grant consisted of a sum of money for the employment of 2 FTEs (Full-time employees) per annum. This grant was due for review at the end of 2018. As previously noted the respondent split this payment between 3 part-time employees. According to the chairman an issue for the committee was that the grant was based on the minimum wage applicable when the grant was approved and the committee had to bear the cost of subsequent increases in the minimum wage.
The issue was considered at a committee meeting held on 15 May 2018 and the possibility of reducing to 1 FTE was considered but a decision was deferred until September. At the committee meeting on 4 September it was agreed to apply for a grant to cover 1 FTE only. It was further agreed that there would continue to be a requirement for a cleaner and caretaker but that the current workload did not justify an administrator. The minutes then record that the redundancy should take place on 31 December and that the chairman should issue the redundancy notice to the complainant. Also mentioned was an alternative method of lodging bingo money as that was a task currently done by the complainant. The decision regarding redundancy was not communicated to the complainant at that time but an email advising that she was no longer required to lodge bingo money was sent to the complainant on 29 August.
On 30 October the complainant emailed the chairman in relation to a complaint that she wished to make regarding an altercation in a local shop between the complainant and a committee member. The subject of the altercation was the lodging of money by the complainant. In the email the complainant takes issue with the behaviour of the committee member and also queries the change in lodging procedure. On 16 November the complainant sends another email to the chairman regretting the fact that she has not received a response. The chairman replied on 19 November regretting that pressure of business and holidays had delayed his response and advising that it had been decided to change the manner of lodging bingo money. The complainant replied the next day to the effect that the money concerned was not bingo money and again seeking clarification on her role in lodging money.
On 5 December 2018 the complainant was handed a letter entitled “Notice of Termination of Employment”. The letter was dated 30 November 2018 and signed by the chairman. In the letter it is stated:
“I am hereby giving 31-day notice of termination of employment. Your employment will end on the 31st day of December 2018.
Employment is ending as a direct result of the (funding body) contract being reduced down. The committee have decided based on this contract revision that there will no longer be a need for the position of administrator. As there is no funding for this position going forward we have no alternative but to make this position redundant.”
The letter ended by advising the complainant that her redundancy payment would be paid in full prior to her last day of employment. In actual fact the two cheques received by the complainant on termination of her employment were returned to her unpaid and in January the complainant contacted the chairman both in that regard and in relation to the return of keys. Later that month the complainant requested all information relevant to her under the Data Protection Act. In March the complainant made a request to the grant provider for information under the Freedom of Information Act and she received documentation from that body in March 2019. This documentation revealed that the respondent contacted the body in early-November 2018 formally requesting a reduction in funding levels from 2 FTEs to 1 FTE for 2019 / 2020. This was discussed by that body’s Appraisal Committee which decided that it was more appropriate for the existing funding offer to remain in place pending clarification on a number of issues. Amongst these issues was the implications of the decision on existing staff. The notes on file include the following observations:
The chairman (of the respondent) was advised that “a reduction in staff numbers could not be implemented by your organisation by the year end and we remind you of your obligations to staffin terms of due process, etc.” The file goes on to note that the respondent replied to the effect that staff contractual arrangements were a matter for (the respondent) as employer of the staff and that the HR processes that had been engaged with by the board and timing of same were outside the funding body’s remit.
In a further section the body notes that changes were being implemented by the respondent in advance of a final decision and that the administrator’s post had already been made redundant and the reduced hours had been implemented and goes on to state: “Although the loss of a job opportunity in a rural area is acknowledged by (the body) as regrettable, especially at Christmas time, the post has already been made redundant by the employer after assessing their own service delivery needs”. The reduced funding proposal was final agreed by the funding body on 24 January 2019.
I note that two further cheques were issued in lieu of those returned to the complainant and that the statutory redundancy sum of €4,507.68 was consequently received by the complainant. I also note that the complainant has applied for a number of similar positions but has not been successful in obtaining employment so far.
Complaint No. CA-00028115-001:
This is a complaint under the Unfair Dismissals Acts, 1977 – 2015, to the effect that the termination of the employment of the complainant amounted to an unfair dismissal.
Section 6(1) of the Act states:
Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
In addition, Section 6(4) of the Act states:
Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or his employer) of a duty or restriction imposed by or under statute or instrument made under statute.
In the case before me the complainant was made redundant. At the time that the decision was made the respondent had 3 persons in employment. Consideration has to be given as to the basis by which the respondent chose the complainant as the person to be made redundant and to the process by which the redundancy was effected. In case No. UD206/2011 the Employment Appeals Tribunal (EAT) considered this matter thus:
“When an employer is making an employee redundant, while retaining other employees, the selection criteria being used should be objectively applied in a fair manner.”
The EAT went on to list some of the deficiencies in that particular case:
“There was no serious or worthwhile consultation with the claimant prior to making her redundant. The consultation should be real and substantial.
No suitable or substantial consideration was given to alternatives to dismissing the claimant by reason of redundancy.
There was no worthwhile discussion in relation to the criteria used in selecting the claimant. The selection criteria should apply to all employees working in the same area as the claimant but should also consider other positions which the claimant is capable of doing.”
In the case before me there was no evidence of any objective or transparent selection criteria being utilised prior to deciding that the complainant be made redundant. Equally obvious is the fact that there was no consultation with the complainant prior to that decision. It is clear from the minutes of the respondent that a specific decision was made by the committee on 4 September 2018 that the complainant alone would be made redundant at the end of the year. That decision was only made known to the complainant on 5 December. That letter did not advise of any process by which the complainant could appeal that decision.
Another element in this case is that the respondent advised the complainant that the redundancy was due to the cut in funding from the funding provider thus giving the impression that the decision had been forced upon the respondent. From the evidence supplied, however, it is clear that the instigator of the decision was the respondent and that at the time of the notification of the redundancy no decision had been made by that body to cut funding. On the contrary the body had questioned the need for the cut and, more particularly had queried the process by which the redundancy was being effected making specific reference to the respondent’s obligations to its staff in terms of due process. Despite this warning the respondent went ahead with the termination of the respondent’s employment without awaiting the official sanction of the funding body.
I understand that the respondent is an entity run by a volunteer committee for the benefit of their community the members of which give of their spare time in this regard. There may well have been a financial imperative for reducing staff numbers. However, when a body is responsible for the employment of people then they must be aware of the responsibilities that follows from being an employer. In particular, if a situation arises when it is contemplated that an employee’s employment may have to be terminated for whatever reason then proper advice should be sought in this regard. This was not done in this particular case and indeed the funding body, who would have experience in this area, had raised concerns about the process but were told that it was none of their business. Indeed the chairperson advised that body that he was “fully versed inlabour law”.
Having regard to all the circumstances I find that the procedure utilised in selecting the complainant were unfair and it therefore follows that the dismissal was an unfair dismissal under the provisions of the Act.
Complaint No. CA-00028115-002:
This is a dispute under the Industrial Relations Act, 1969, and is concerned with allegations that the complainant was subjected to bullying and harassment during her employment. The incident at the heart of this complaint relates to the altercation between the complainant and a member of the committee on 25 October 2018 in a local shop regarding the lodging of money. The complainant sent an email to the Chairman a few days later stating that she wished to make a complaint about the committee member’s actions. The complainant said in the email that she was verbally attacked and shouted at and the complainant also referenced the fact that she had spoken to the chairman about a similar incident involving the same committee member back in April. The complainant also sought clarification as regards her role in lodging money.
The chairman in evidence said that he had not investigated the matter as the decision had already been taken to make the complainant redundant. A further factor was that the incident had not occurred in the workplace. It was accepted that there was no policy in place to deal with bullying / harassment and that there was no staff handbook.
The accepted definition of bullying is that it consists of “repeated inappropriate behaviour, direct or indirect, whether verbal, physical or otherwise.” I note that the only detailed incident of which there was direct evidence is the one occurring in October 2018. A complaint was made but was not investigated. The reason for the non-investigation is unacceptable bearing in mind that another 5 weeks would elapse before the complainant was given notice of her redundancy. I do not believe, however, that the complainant was subjected to bullying as defined above. The respondent of course should have in place a recognised policy and procedure for dealing with bullying / harassment in the workplace and such a policy should be incorporated in a staff handbook.
This is a complaint under the Terms of Employment (Information) Act, 1994, to the effect that the complainant was not notified of a change in her terms of employment. Section 3(1) of the Act states:
An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of employment…..
The subsection then goes on to list the specific particulars required.
Section 5(1) of the Act states:
Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3,4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –
(a) 1 month after the change takes effect, or
The only evidence in regard to this complaint was in relation to the decision to take away responsibility for lodging certain monies from the complainant. This led to the altercation with the committee member referred to in the previous complaint. Whilst I can understand the annoyance felt by the complainant in this regard a change in banking / lodging arrangements is an operational matter and not one that affects terms of employment as outlined in the relevant Sections of the Act. I therefore do not find this complaint to be well founded.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint/disputes in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
Complaint No. CA-00028115-001:
As outlined above and for the reasons contained therein I find that the complainant was unfairly dismissed and taking all matters into consideration I order the respondent to pay to the complainant the sum of €7,500.00 as compensation in this regard.
Complaint No. CA-00028115-002:
This is a dispute under the Industrial Relations Act, 1969. I recommend that the respondent seek appropriate advice in relation to the formulation and introduction of policies and procedures to deal with bullying / harassment in the workplace and that such policies be incorporated into a staff handbook. I further recommend that all committee members who are in positions that interact with employees of the respondent receive training regarding both these matters. As noted, I do not believe that the complainant was the subject of bullying but that a legitimate grievance exists in relation to the non-investigation of her complaint. As the employment relationship has now terminated I recommend that the respondent pay to the complainant the sum of €250.00 as recognition of that grievance.
Complaint No. CA-00028115-003:
For the reasons set out above I find this complaint under the Terms of Employment (Information) Act, 1994, not to be well founded and it therefore fails.
Dated: 28th November 2019
Workplace Relations Commission Adjudication Officer: Joe Donnelly
Redundancy Unfair Selection Bullying Terms of Employment